As Tom discussed, much attention will now turn to Judge Sotomayor's record as a judge on the Second Circuit, and in particular on the decision she joined in Ricci v. New Haven, the case involving a suit by white and Hispanic firefighters passed over for promotion when the City declined to implement the results of a promotion test upon which black firefighters performed disproportionately poorly.

I agree with Tom's assessment that Judge Sotomayor's detractors will have a hard time making the case that her work is anything but thorough and thoughtful, based on a reading of the bulk of her opinions.  This may, however, make the Supreme Court's decision in Ricci all the more important in the coming debate.  The Court's review of the decision will provide those involved in the public debate with a seemingly objective measure of the quality of her work.

[Disclosure: the Stanford Supreme Court Litigation Clinic filed an amicus brief in support of New Haven in the case].

As Tom mentions, some may point to the fact that the panel declined to publish the decision as an indication that it was trying to insulate a bad decision from review. As Tom also notes, that will be a hard argument to convey to the general public, and it is doubtful that the Court itself will say anything about it. 

However, the Court may provide a basis for a more accessible criticism "“ that the panel ignored evidence in the record that showed that New Haven's conduct was illegal under anyone's view of the law. 

That is, in the Supreme Court briefing, all the parties agreed that if New Haven declined to implement the results of its promotion test because it did not want to promote the best performers because they were white or Hispanic, then that was clearly illegal.  New Haven says that this isn't what happened, that it was simply trying to avoid a violation of Title VII's disparate impact provision.  And much of the debate in the Supreme Court is whether New Haven's conduct was legal assuming that motivation. 

But at the same time, the plaintiffs in Ricci have argued that there was substantial evidence in the record that avoiding disparate impact was not New Haven's actual motivation.  Instead, they insist that New Haven was acting out of "racial politics" and good old-fashioned intentional racial discrimination.

Importantly, if the Court agrees "“ and agreeing on this point could provide a very narrow grounds for resolving an extremely contentious case "“ it will likely write an opinion that says the panel erred in disregarding summary judgment evidence that tended to show New Haven declined to promote the plaintiffs because of their race, and not because of any concern about complying with Title VII.

If the Court resolved the case on that ground "“ or reached the issue in addition to resolving the broader legal questions "“ some may portray the Court's opinion as rebuking Judge Sotomayor and her colleagues for ignoring evidence that contradicted a desired result.  That would be a much more accessible, and in some ways more damning, criticism.

The criticism would be blunted, of course, if the liberals on the Court (including Justice Souter, whom she would replace) disagree with the majority's assessment of the panel's performance.  Moreover, how much purchase such a criticism would find may well depend on how the Court writes its opinion.  And now that it knows that its opinion will have an affect on the confirmation proceedings, the Court may well write its opinion differently, out of deference to what in all likely will be a future colleague or out of a desire to avoid seeming political entanglements.

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